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13 February 2016

Discriminatory Tariff Regulations and Net Neutrality

TRAI’s regulations on differential tariffs has left me with as many questions as answers. Not least because it doesn't seem to be as clear cut a 'victory for net neutrality' as it's been widely seen as.

Has TRAI assumed, going by its definition of discriminatory tariffs for data services, that charging different tariffs is necessarily discriminatory? How does that fit in with its own differential treatment of the internet and a ‘closed electronic communications network’ (CECN)? Also, how does it fit in with its Rule 4 exemption which seems to recognise that there are times when differential tariffs may not be a bad thing?

Content per the regulations is limited to content accessed or transmitted over the internet, not content which could potentially be accessed or transmitted over the internet. So, presumably, it excludes all content either accessed or transmitted over what’s defined as a CECN. The definition of a CECN has no mention of content though; it uses the word ‘data’. Data is not defined in these regulations, neither is it defined in the TRAI Act; I don’t know if it’s defined in some subordinate legislation under the TRAI Act.

There’s a definition of ‘data’ in the IT Act. There doesn’t seem to be basis for importing the IT Act definition into regulations under the TRAI Act. Nonetheless, it says:

2(1)(o) "data" means a representation of information, knowledge, facts, concepts or instructions which are being prepared or have been prepared in a formalised manner, and is intended to be processed, is being processed or has been processed in a computer system or computer network, and may be in any form (including computer printouts magnetic or optical storage media, punched cards, punched tapes) or stored internally in the memory of the computer.

This IT Act definition, assuming that it reflects what TRAI understands by data (and it may not), does not really correspond to the definition of content under the TRAI regulations. Do the regulations intentionally talk about content via the internet, and data via CECN? And, if so, what are the implications of this? Are the two somehow in opposition to each other? Is it simply a lead up to say that content via CECN can be differentially priced provided that the CECN does not transmit data via the internet?

Assuming that a CECN does not interact with the internet, presumably, it can be offered free / at a price different from the ‘standard’ internet? So, is all that’s required here merely that access to a CECN not be mislabelled as access to the internet? Provided it's not mislabelled, can it be marketed to the consumer? In which case, how is it compatible with an overarching net neutrality principle?

The regulations say that differential pricing for a CECN is acceptable as long as it’s not ‘for the purpose of evading the prohibition [presumably, of discriminatory tariffs] in this regulation’. What are the acceptable purposes for which a CECN can be set up? And what factors would TRAI use to determine if it’s been set up to evade the prohibition in the regulation?

Excerpts from The Prohibition of Discriminatory Tariffs for Data Services Regulations, 2016Pertinent Definitions.2 (1) In these regulations, unless the context otherwise requires, (c) "closed electronic communications network" means a communications network where data is neither received nor transmitted over the internet;(d) "consumer" means a consumer of a service provider and includes its customers and subscribers;(e) "content" includes all content, applications, services and any other data, including its end-point information, that can be accessed or transmitted over the internet;(f) "data services" means services offered or provided to a consumer using any equipment, technology or medium, including wireless and wireline technologies, to access or transmit data over the internet;(g) "discriminatory tariffs for data services" means charging of different tariffs by a service provider for data services based on the content accessed, transmitted or received by the consumer;(m) "tariff' means the rates and related conditions at which data services are offered or provided by the service provider, including free data, usage charges, refunds, installation fees, deposits, rentals, and any other related fees or service charges.Prohibition of discriminatory tariffs.3. Prohibition of discriminatory tariffs. (1) No service provider shall offer or charge discriminatory tariffs for data services on the basis of content.(2) No service provider shall enter into any arrangement, agreement or contract, by whatever name called, with any person, natural or legal, that has the effect of discriminatory tariffs for data services being offered or charged to the consumer on the basis of content:Provided that this regulation shall not apply to tariffs for data services over closed electronic communications networks, unless such tariffs are offered or charged by the service provider for the purpose of evading the prohibition in this regulation.(3) The decision of the Authority as to whether a service provider is in contravention of this regulation shall be final and binding.4. Exemption for certain content. Notwithstanding anything contained in regulation 3, a service provider may reduce tariff for accessing or providing emergency services, or at times of grave public emergency: Provided that such tariff shall be reported to the Authority within seven working days from the date of implementation of the reduced tariff and the decision of the Authority as to whether such reduced tariff qualifies under this regulation shall be final and binding.

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